A. Whether Petitioner had a constitutional right to have the
jury instructed on his entrapment defense.

After review of the Petition, the Court finds that ground one
establishes a constitutional violation, and thus the Court will
not reach the other issues presented.*fn2 In ground one,
Petitioner alleges that the trial court violated his Fourteenth
Amendment right to procedural due process when it refused to
give the jury an instruction on the entrapment defense. Under
the authority of Mathews v. United States, 485 U.S. 58, 108
S.Ct. 883, 99 L.Ed.2d 54 (1987), Petitioner argues that he was
entitled to have the jury instructed on the entrapment defense
because he produced "sufficient evidence from which a
reasonable jury could find entrapment," id. at 62, 108 S.Ct. at
886, even though he denied the intent to kill, one of the
elements of the crime charged. Respondents argue that
Petitioner is not constitutionally entitled to an instruction
on the defense because Mathews did not identify any
constitutional underpinnings of the right.*fn3 See People
v. Gillespie, 136 Ill.2d 496, 557 N.E.2d 894, 145 Ill.Dec. 915
(Ill. 1990); People v. O'Toole, 226 Ill. App.3d 974,
590 N.E.2d 950, 169 Ill.Dec. 31 (Ill. App. 1992); but see People v.
Everette, 141 Ill.2d 147, 565 N.E.2d 1295, 152 Ill.Dec. 377
(Ill. 1990).*fn4

In Mathews, the issue was whether "a defendant in a federal
criminal prosecution who denies commission of the crime may
nonetheless have the jury instructed, where the evidence
warrants, on the affirmative defense of entrapment." Mathews,
485 U.S. at 59, 108 S.Ct. at 885. The Court held that "even if
the defendant denies one or more elements of the crime, he is
entitled to an entrapment instruction whenever there is
sufficient evidence from which a reasonable jury could find
entrapment." Id. at 62, 108 S.Ct. at 886. The discussion in
this case focused on the inherent inconsistency presented by an
entrapment defense, which presupposes commission of the crime,
and denial of one or more elements of the crime necessary to
find that the crime was in fact committed.

Initially, the Court found that inconsistent defenses should
be permitted in criminal trials, even though the criminal code
did not expressly provide for them, because "the only matters
required to be specially pleaded by a defendant are notice of
alibi and an intent to rely on insanity as a defense."
Id. at 64-65, 108 S.Ct. at 887. The Court then specifically
held that criminal defendants were entitled to have the jury
presented on the entrapment defense, even if they denied one or
more elements of the crime. Although the Supreme Court in
Mathews did not expressly identify the Fifth and Sixth
Amendments as the constitutional source for an instruction on
entrapment, the Seventh Circuit filled this void in Whipple v.
Duckworth, 957 F.2d 418 (7th Cir. 1992).

In Whipple v. Duckworth, 957 F.2d 418 (7th Cir.), cert.
denied, ___ U.S. ___, 113 S.Ct. 218, 121 L.Ed.2d 157 (1992),
the Seventh Circuit held that the Fifth and Sixth Amendments
give a criminal defendant the right "to an instruction as to
any recognized defense for which there exists evidence
sufficient for a reasonable jury to find in his favor." Id. at
423 citing Mathews 485 U.S. at 63, 108 S.Ct. at 886. By citing
Mathews as support for this proposition, the Court suggested
that the entrapment defense falls within the ambit of other
affirmative defenses protected by the Fifth and Sixth
Amendments, even though the Supreme Court failed to identify
the constitutional source of this entitlement. Whipple, 957
F.2d at 421. Unlike the Supreme Court in Mathews, the Circuit
Court clearly identified a "defendant's right to submit a
defense for which he has an evidentiary foundation" as
"fundamental to a fair trial," and thus "protected under both
the Fifth and Sixth Amendments."*fn5

The Sixth Amendment, which assures the defendant
of a right to trial by jury, is violated where the
trial judge directs a verdict on an issue against
the defendant. "[I]f the trial judge evaluates or
screens the evidence supporting a proposed defense
and upon such evaluation declines to charge on
that defense, he dilutes the defendant's jury
trial by removing the issue from the jury's
consideration." [citations omitted]. . . . A Fifth
Amendment violation occurs when the instructions
provided do not "accurately [reflect] the law as
it
appeared at the time of the alleged criminal
conduct." [citations omitted].

The Court finds that Whipple and Mathews, taken together,
support the holding that the Fifth and Sixth Amendments give
criminal defendants a constitutional right to have the jury
instructed on the entrapment defense where the evidence is
sufficient for a reasonable jury to find entrapment, even if
defendants deny one or more elements of the underlying crime.
Because the record indicates that Petitioner produced evidence
on the entrapment defense sufficient to warrant an
instruction,*fn7 the trial court's failure to instruct the
jury on Petitioner's entrapment defense violated his Sixth
Amendment right to a jury trial, and his Fifth Amendment due
process right to have the law accurately stated.

In this case, the Court will not deny habeas relief merely
because Petitioner claims that the trial court's failure to
instruct the jury on entrapment violates his Fourteenth
Amendment right to Due Process, rather than the Fifth and Sixth
Amendments. The issue posed by Petitioner's failure to identify
the entrapment claim as a Fifth and Sixth Amendment right is
whether the state courts were "fairly alerted" to the
constitutional issue so that the courts had an opportunity to
remedy any constitutional deficiencies. See Anderson v.
Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Verdin
v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992); Whipple v.
Duckworth, 957 F.2d 418 (1992). Four factors guide the
analysis: reliance on federal cases employing constitutional
analysis, reliance on state cases employing constitutional
analysis, assertion of the claim in particular constitutional
terms, and allegation of a pattern of facts within the
mainstream of constitutional litigation. Whipple, 957 F.2d at
420. Petitioners are not required to cite "book and verse on
the federal constitution." Id. (citing cases).

In Whipple, the Petitioner did not attempt to identify the
source of his alleged entitlement to have his self-defense
claim presented to the jury, but the Seventh Circuit held,
nonetheless, that, because Petitioner relied on cases that
raised the same constitutional questions presented by the
habeas petition, he could not be penalized for failing to
identify the constitutional underpinnings of a right that even
the Seventh Circuit had failed to identify. Id. at 420-21. In
this case, Petitioner has not failed to identify a potential
source of the right, but rather has mistaken that source.
Whipple was the first case to clearly identify the Fifth and
Sixth Amendments as the constitutional source of Mathews.
Although this case was not decided at the time Petitioner
raised the entitlement defense on direct appeal, Mathews was
argued to those courts, and its holding was sufficient to raise
the substantive constitutional question at issue in this habeas
petition. Thus, under the authority of Whipple, the Court will
excuse Petitioner's failure to correctly identify the source of
his right to an entrapment defense instruction.

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